Do you know what your professional obligations are if you were convicted of an offence punishable by imprisonment? Or what if your Medicare billing privileges were restricted?
Many health practitioners are not aware of their legislative obligation to notify the Australian Health Practitioner Regulation Agency (AHPRA) when a relevant event occurs as required under Section 130 of the Health Practitioner Regulation National Law (NSW) (National Law).
Legislative Obligation
Section 130 of the National Law requires a health practitioner to notify AHPRA within seven (7) days of becoming aware of a ‘relevant event’ occurring (Section 130 Notification).
A ‘relevant event’ for a health practitioner includes events such as:
- if the practitioner is charged with an offence which is punishable by 12 months imprisonment or more;
- if the practitioner is convicted of, or the subject of a finding of guilt, for an offence which is punishable by imprisonment;
- the practitioner no longer has appropriate professional indemnity insurance arrangements in place;
- the practitioner’s right to practise at a hospital or another facility where health services are provided is withdrawn or restricted;
- the practitioner’s billing privileges are withdrawn or restricted;
- the practitioner’s authority in relation to scheduled medicines is cancelled or restricted; or
- the practitioner’s registration under the law of another country is suspended, cancelled or made subject to a condition / restriction.
Section 130 of the National Law also provides that medical students must notify AHPRA within seven (7) days if they are charged with an offence punishable by 12 months imprisonment or more, are convicted of or the subject of a finding of guilt for an offence punishable by imprisonment, or if their registration under the law of another country that provides for the registration of students has been suspended or cancelled.
Recent Cases
The NSW Civil and Administrative Tribunal (Tribunal) has recently considered a number of cases relating to Section 130 Notifications.
In Health Care Complaints Commission (HCCC) v Amalakumar [2019] NSWCATOD 173, the HCCC alleged, in addition to a number of other matters, that Dr Amalakumar had breached Section 130 of the National Law on the basis that he did not notify AHPRA when he was charged with common assault which was punishable by two years’ imprisonment.
Rather, Dr Amalakumar notified AHPRA that he had been charged with and found guilty of common assault nearly six months after he was the subject of the criminal finding.
The Tribunal accepted the practitioner’s evidence that he was not given the correct advice in relation to his obligation to report under section 130 of the National Law, and that he made a report to AHPRA reasonably promptly after receiving the correct advice.
The Tribunal made it clear that the complaint relating to Dr Amalakumar’s breach of Section 130 was ‘serious‘ and that ‘it is important…that practitioners comply with the reporting obligations which form part of the system‘. In this case, in relation to the breach of Section 130, the Tribunal did not consider it necessary or appropriate to make a protective order as it did not consider the practitioner’s omission to be deliberate or careless.
In Health Care Complaints Commission v Lidman [2020] NSWCATOD 48, the HCCC alleged (amongst other things) that Mr Lidman, a registered nurse, failed to make timely and appropriate self-notifications concerning criminal proceedings for an assault on his former partner in 2015 and a breach of an Apprehended Violence Order in 2017.
The Tribunal again noted the ‘seriousness‘ of the failure to notify and that the failures in 2017 were ‘far more serious‘ as Mr Lidman was clearly aware of his professional obligations, and failed to fulfil them. Subsequently, given the seriousness of the findings, the Tribunal held it was appropriate to reprimand the practitioner.
In both cases, the Tribunal noted the importance of health practitioners being aware of their ‘duty of candour’ to regulatory bodies to ensure the protection and safety of the public, and the importance of the regulatory bodies pursuing breaches of a practitioner’s obligation under Section 130 of the National Law to promote general deterrence to other health practitioners.
There have been a number of further recent cases in the Tribunal which reference the decisions set out above, so it is clear that the importance of making a timely notification under section 130 of the National Law continues to be a focus for the regulatory bodies and the Tribunal.
What does this mean for me?
The above cases are a timely reminder of the importance of practitioners being aware of their legislative obligation under Section 130 of the National Law.
Practitioners must be familiar with what is classified as a ‘relevant event’ and that a notification must be made to AHPRA within 7 days of the relevant event occurring. It is clear that a failure to notify is taken very seriously by the Tribunal noting the Tribunal if focusing on ensuring the protection and safety of the public.
This article was written by Scott Chapman, Partner, Patricia Marinovic, Senior Associate and Holly Johnston, Solicitor.
